Tietjen v. Meldrim

• Decision Date: 10 June 1931
• Docket Number: No. 8085.,8085.
• Citation: 172 Ga. 814,159 S.E. 231
• Parties: TIETJEN et al. v. MELDRIM et al.
• Court: Georgia Supreme Court

172 Ga. 814

159 S.E. 231

TIETJEN et al.

v.MELDRIM et al.

No. 8085.

Supreme Court of Georgia.

June 10, 1931.

Syllabus by Editorial Staff.

Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.

Suit by Harry A. Tietjen and others against Judith F. Meldrim and another. Judgment for defendants, and plaintiffs bring error.

Reversed.

Henry A. Tietjen and others filed a petition against Judith F. and Lucius K. Meldrim,, seeking to enjoin the defendants from obstructing and interfering with the exercise of rights of easement over streets or ways in a subdivision of land in which both plaintiffs and defendants own portions or lots. The facts of the case are well and fully stated in Tietjen v. Meldrim, 169 Ga. 678, 151 S. E. 349, wherein this court formerly dealt with the case. In that decision the controlling principles of law were settled, and the case was remanded for trial. On the return of the case to the trial court the defendants offered an amendment to their answer, to which the plaintiffs objected and demurred. These objections and demurrers were overruled. The case proceeded to trial. The court excluded two deeds, and excluded the record of a proceeding in the municipal court of Savannah to abate the obstruction of thestreets as a nuisance, offered by the plaintiffs, and, when the plaintiffs had concluded their evidence, granted a nonsuit. The plaintiffs excepted to each of the rulings just stated.

Farr & Richter, of Savannah, for plaintiffs in error.

Oliver & Oliver and Shelby Myrick, all of Savannah, for defendants in error.

Syllabus Opinion by the Court.

GILBERT, J.

1. The court did not err in allowing over objection or in overruling the demurrer to the defendants' amendment to their answer.

2. The court erred in refusing to admit in evidence the receiver's deed offered by plaintiffs. It appears from the evidence that both the plaintiffs and the defendants claim title from a common source, to wit, from the court receiver of the property embraced in the subdivision of land. Moreover, the deed objected to was executed in the year 1899, and as a part of an equitable proceeding disposing of the remaining unsold portions of land embraced in the subdivision; and while only one director of the defendant corporation consented to the rendition of the judgment at the first term, the present record does not disclose any effort ever having been made to set aside the judgment or to contest its validity.

3. Error Is assigned on the exclusion of a deed dated April, 1914, duly recorded, made by Frank C. and Catherine Deiter, executor and executrix of George Deiter, to Mamie D. Schwarz [a plaintiff] conveying four lots in the subdivision, upon objection that letters testamentary did not accompany the deed. The assignment of error recites the previous introduction in evidence of a deed conveying the same lots to Frank and Catherine Deiter, the personal representatives...